Is the Supreme Court Conservative? Not Yet

Impeccable liberal sources, including the editorial page of
the New York Times, insist that the court is radically activist
and conservative, regardless of its decision to uphold the
Affordable Care Act. Conservative observers continue to intone
that the court is liberal and out of touch with America -- as it
has been for nearly 60 years, since Earl Warren was named chief
justice in 1953.

Who is right? Should we be paying more attention to the
court’s cursory one-pager reaffirming Citizens United (and the
super-PACs), or to the health-care and immigration decisions, in
which close majorities reached compromise positions that leaned
left?

The liberal case that this is a strikingly conservative
court poised to become more so must be taken seriously. A slim
5-4 majority that includes Justice Anthony Kennedy has
essentially gutted campaign-finance regulation over the past
three years, ending a decades-old judicial compromise in which
campaigns were allowed to spend as much as they wanted but
individuals and corporations were limited in how much they could
donate.

Senseless Compromise

That compromise never made much doctrinal sense: If money
is speech, neither spending nor donation should be limited; if
it isn’t, both should be subject to regulation. Nonetheless, the
compromise did represent a pragmatic solution to the partisan
political debate over money in elections. Now, the court has
picked a winner -- the conservative view that money should flow
freely. Because its crucial rulings have been based on
fundamental constitutional rights rather than the language of
the statutes, there is nothing that Congress can do about it.

The court has also struck down an unusual amount of
legislation in recent years, often using reasoning that seems to
hark back to the bad old days of conservative activism in the
1920s and 1930s. It revived the Second Amendment to strike down
gun-control laws in Washington; it invalidated the protection
from firing enjoyed by the members of the public accounting
board created by the Sarbanes-Oxley corporate reform law; and it
held that unions must get the consent of nonmembers before using
their money for political purposes.

Yet the liberal critics are soft-pedaling the dramatic end
of this year’s term. Five major cases loomed. All were extremely
close. And in four out of the five, the result was decidedly a
win for liberals.

The court ruled, with Kennedy providing the deciding vote,
that states could not impose mandatory life sentences on
juvenile offenders convicted of murder. This decision continued
a decidedly liberal trend of decisions (in which Kennedy has
participated) using the concept of cruel and unusual punishment
to block states from certain punishments of minors and the
mentally disabled. These decisions overruling tough state laws
are the sort of thing conservatives detest as elitism and
liberals embrace as humanitarian.

When it came to free speech, a split coalition of five --
again including Kennedy -- struck down an innocuous-seeming
federal law that outlawed lying about your military decorations.
This is not quite free-speech absolutism; but to say that
Congress lacks the power to prohibit you from falsely announcing
that you received a Medal of Honor surely comes close.
Conservatives could be forgiven for thinking that the Warren
Court’s free-speech revolution isn’t over yet.

Sensible Repudiation

In the Arizona immigration decision, the court relied on
federal power to block the state from doing almost anything on
its own to enforce immigration law except running a mandatory
status check on people who are stopped or arrested for other
reasons. Even in doing so, the court warned the state against
holding arrestees any longer than usual to perform the check,
and reminded us that the law could still be challenged if it is
applied in a discriminatory way, for example through racial
profiling. Liberals could hardly have asked for a clearer
repudiation of the sentiment for tough, state-based enforcement
against illegal immigrants that lay behind the Arizona law and
copycat efforts in other states.

Then there was the health-care shocker. Conservatives were
prepared to be betrayed by Kennedy. He is conservative when it
comes to federal power and liberal it comes to human dignity;
and there was a risk that he would consider health insurance to
fall more in the latter category than the former. But few, if
any, conservative court watchers thought they would keep Kennedy
and lose Chief Justice John Roberts, darling of the conservative
Federalist Society and former clerk to conservative stalwart
William H. Rehnquist.

Make no mistake: The health-care case was conservatives’
greatest opportunity in a generation to repudiate expansive
government programs that many of them believe infringe on the
liberties of the citizen. The individual mandate seemed like a
gift from the gods: a simple, easily understood government-
imposed obligation in the midst of a vast and inscrutable law.
They will not get another chance like it again.

Amazingly, deus ex machina, the principle of judicial
restraint prevailed over the impulse to activism. Defeat was
snatched from the jaws of victory -- a belief since made all the
more acute for conservatives by plausible speculation that
Roberts changed his views during deliberation.

Conservatives are left with frustration and outrage that,
after years of coordinated efforts, the court is still not a
conservative power-center. As was the case in 1992, when
conservative hopes of repealing Roe v. Wade were dashed by
Republican nominees Kennedy, Sandra Day O’Connor and David Souter, it seems that something always blocks the court from the
decisive conservative result.

Granted, the justices of this court are still deeply split,
with four liberals, four conservatives and a swing voter in
Kennedy. But, despite fears and hopes to the contrary, the
Supreme Court as an institution has remained cautiously,
gradually liberal.

(Noah Feldman, a law professor at Harvard University and
the author of “Scorpions: The Battles and Triumphs of FDR’s
Great Supreme Court Justices,” is a Bloomberg View columnist.
The opinions expressed are his own.)